People v. McCary

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered May 22, 1989, convicting him of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the seventh degree, and unlawful possession of marihuana, upon a jury verdict, and imposing sentence. This appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence. Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by reversing the conviction of criminal possession of a controlled substance in the first degree, vacating the sentence imposed thereon, and ordering a new trial with respect to that count of the indictment; as so modified, the judgment is affirmed. The evidence adduced at the suppression hearing establishes that in the early morning hours of October 25, 1988, the defendant was observed by Police Officer Christopher McCarthy quickly exiting a house in a high crime area while tightly clutching a black object which McCarthy testified appeared to him to be a weapon. The defendant then entered the back seat of a livery cab which was parked in front of the house and which already contained a driver and a back seat passenger. McCarthy and his partner followed the livery cab for about two blocks before pulling it over. The officers then approached the cab, with their guns drawn, and ordered the defendant to exit the vehicle. As the defendant did so, he took a black bag which had been located between him and the door and passed it to Deborah Watson, the female passenger who was seated beside him. According to McCarthy, the bag, which resembled a shaving kit, was the object that he had previously thought [857] to be a weapon. After the defendant was patted down, Ms. Watson was directed to open the bag. Inside were personal effects and a substance later determined to be crack-cocaine. The defendant and Ms. Watson were arrested, and a station house search of the defendant’s person revealed a vial of cocaine and two bags of marihuana. The hearing court correctly concluded that the police officers acted properly in stopping the cab and asking the defendant to alight therefrom after having observed the defendant carrying an object which they reasonably believed to be a weapon (see generally, People v Ingle, 36 NY2d 413, 416-417). While the court further found that the defendant abandoned the bag and therefore lacked standing to challenge its seizure, we conclude that this analysis of abandonment was unnecessary, inasmuch as the hearing record amply demonstrates that the defendant had no standing to challenge the search because he failed to establish that he had a reasonable expectation of privacy in the property removed from Ms. Watson (see, United States v Salvucci, 448 US 83; Rawlings v Kentucky, 448 US 98; People v Ponder, 54 NY2d 160; see also, People v Wesley, 73 NY2d 351). In this regard, the dissent accurately notes that initially there was some conflicting evidence at the hearing with respect to the ownership of the black bag and its contents. For example, the bag was described as resembling a shaving kit, and the defendant stated at the scene that it belonged to him in a transparent attempt to prevent the arrest of Ms. Watson. However, when asked to describe the contents of the bag which Ms. Watson opened at his request, Officer McCarthy testified that he "observed a lot of personal effects, lipstick, compresses”. Furthermore, any doubt as to the identity of the owner of the bag was dispelled once the officer testified at the hearing that the bag was no longer available because it had been inadvertently released to the owner shortly after the arrest: "the witness: It was released to the owner the day after the arrest, sir. "the court: Who was the owner? "the witness: Deborah Watson * * * "the court: And is Deborah Watson—was it released to her? Do you have some document to show who signed off on it? "the witness: I called the command and I was informed that Deborah Watson had signed for it”. Accordingly, we are satisfied that the bag was the property of [858] Ms. Watson and that the defendant failed to demonstrate that he had the requisite interest in its contents to give him standing to challenge the conduct of the police in having Ms. Watson open the bag which was on her lap. Moreover, standing to challenge the search and seizure of the bag vis-á-vis Ms. Watson was not conferred upon the defendant under the doctrine espoused in People v Millan (69 NY2d 514) and elaborated on in People v Wesley (73 NY2d 351, 360-362, supra), as the defendant was not charged with possession of the cocaine seized from the car under the statutory presumption (see, Penal Law § 220.25 [1]). However, we find that reversal and a new trial with respect to the conviction of criminal possession of a controlled substance in the first degree is warranted based upon the trial court’s decision to grant the People’s request to charge the jury under Penal Law § 220.25 (1) to the effect that the presence of a controlled substance in an automobile "is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found”. A review of the Grand Jury minutes and the charge sheet reveals that the defendant was not charged with possessing the cocaine found in the black bag based upon the statutory presumption. Moreover, at the suppression hearing, the People asserted that they were not even aware of such a presumption, and the hearing court made clear that its determination of lack of standing would preclude the People from relying on such a presumption at trial. However, in spite of its previous determination, and over the vigorous objection of defense counsel, the trial court permitted the People to alter their theory of prosecution and charged the jury as to both actual possession and the statutorily presumptive possession outlined in Penal Law § 220.25 (1). The court’s action was highly prejudicial to the defendant, as he was then faced with a charge of possession under the statutory presumption even though he had not been given an opportunity to contest the search and seizure of the black bag and its contents on that basis (see, People v Wesley, supra, at 360). Although the defendant does not explicitly request reversal of his conviction of criminal possession of a controlled substance in the first degree on this basis, we find that the interest of justice compels such a result. Finally, the fact that the jury may have convicted the defendant based upon his actual possession of the crack-cocaine does not alter our result (see, Stromberg v California, 283 US 359; see also, People v Knight, 138 AD2d 294, 297). Sullivan, Rosenblatt and Ritter, JJ., concur.